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In a 2-1 decision July 1 by the Sixth U.S. Circuit Court of Appeals, the ban on the use of race-based criteria in making Michigan's public education, public contracting and public employment decisions was reversed. The Court's opinion, with Judge Julia Smith Gibbons dissenting, held that amending the state constitution using Proposition 2 "modifies Michigan's political process to place special burdens on the ability of minority groups to achieve beneficial legislation."

The case is a result of a Ward Connerly-led ballot referendum in November 2006, supported by 58 percent of Michigan voters, which amended the state's constitution to prevent discrimination against and preferential treatment of individuals or groups based on "race, sex, color, ethnicity or national origin in the operation of public employment, public education or public contracting." A lawsuit was filed the day after the amendment was enacted by the Coalition to Defend Affirmative Action, Integration and Immigration Rights and Fight for Equality By Any Means Necessary, which after many changes in defendants and being merged with another case, became Coalition to Defend Affirmative Action (BAMN), et. al. v. Regents of the Univ. of Michigan, et. al., on which the Court made their ruling.

At issue for the Court, in the opinion delivered by Judge R. Guy Cole, was not the underlying issue - that affirmative action should be a prevailing policy and mandate - but the way the change was accomplished. The opinion spells out that the resulting situation violates both tests of the 14th Amendment's Equal Protection Clause: the "political process" argument by "impermissibly restructuring the political process along racial lines" and the "traditional" argument by "impermissibly classifying individuals on the basis of race."
Professor Lisa Crooms, director of the Constitutional Law Center of the Howard University School of Law, said the decision relies on a U.S. Supreme Court precedent that was generated during a different time, referring to the 1969 Hunter v. Erickson and the 1982 Washington v. Seattle that were heavily referenced by the opinion. From these cases the Court gleaned tests it applied to the circumstances in BAMN v. Michigan.

The opinion steps through the logic of the majority, at times addressing concerns of the dissenting judge, showing how it applied what it believed to be the relevant points in Hunter and Seattle. "The evil condemned by the Hunter Court was not the particular political obstacle of mandatory referenda imposed by the Akron charter amendment; it was, rather, the comparative structural burden placed on the achievement of minority interests," the opinion states.

A central theme of the reversal is that now, for race-related policies, especially as related to university admissions, instead of being able to directly lobby the university, "a Michigan citizen seeking that Michigan universities adopt race-based admissions policies must now begin by convincing the Michigan electorate to amend the Michigan Constitution. ... Only after traversing this difficult and costly process would the now exhausted Michigan citizen reach the starting point of his opponent who sought a non-race related admissions policy change [a change to the legacy policy, or standardized test requirements]."

Crooms reiterates that it's the mechanism to achieve the goal that the Sixth Circuit objects to, saying, "They didn't deny the constitutionality of the aim to be achieved."

"It's significant that a court overruled a referendum process," said Professor Jose Anderson, University of Baltimore School of Law. He added that it was a big statement of the strength the courts possess over the legislative process.

"Who gets to decide which of these tools [referendum, policies, laws] get to survive? ... Sooner or later the Supreme Court is going to have to say whether these tools [policies, laws] can be pushed away by simple majority vote."

Pointing out that the country has to make a decision about diversity and the different forms it may take, he added, "We finally have to decide, as a matter of public policy, whether it's valuable or not."

Citing an appreciation for the research of the Court and their application of these cases, Crooms said, "It's an interesting decision. It's most definitely going to be appealed."
Michigan Attorney General Bill Schuette told The Associated Press that his appeal would include a request for review by the entire appeals court. This type of request is usually denied.

"It stands a good chance of being reviewed by the Supreme Court," said Anderson. "But it's too far away to know if there will be five justices that will vote to overturn."

Comments

The vast majority of courts have rejected these challenges (including the California Supreme court last August). At the time of the political structure was held to apply to school desegregation (Washington v. Seattle School District No. 1, 458 U.S. 457, 102 S.Ct. 3187, 73 L.Ed.2d 896 (1982)), those efforts were not seen as invidious. Now, school racial balancing is seen as invidious (Parents Involved in Community Schools v. Seattle School District No.1), which calls into the question the vitality of the 1982 precedent. It does not support the claim that because racial balancing schemes and affirmative action are supposedly constitutionally indistinguishable, the political structure now applies to racial preferences. In fact, the two are still not constitutionally indistinguishable; as Parents Involved did not absolutely foreclose the possibility of court-ordered desegregation plans, even though there have never been court-ordered affirmative action plans, for the reasons below.

From the California supreme court:

Today the race-conscious pupil assignment programs repealed by Washington's voters would be presumptively unconstitutional and, thus, subject to strict scrutiny. (See Parents Involved in Community Schools v. Seattle School Dist. No. 1 (2007) 551 U.S. 701, 720 (Parents Involved ).) But at the time Seattle was decided, the high court's prior decisions indicated that the assignment of pupils by ratios to achieve racial balance fell “within the broad discretionary powers of school authorities” to formulate “educational policy” and to “prepare students to live in a pluralistic society․” (Swann v. Board of Education (1971) 402 U.S. 1, 16; see also North Carolina State Board of Education v. Swann (1971) 402 U.S. 43, 45.)

Affirmative action is and has always been held to be invidious. Grutter v. Bollinger did not imply differently. Otherwise, Justice O’Connor would not have suggested a time limitation. Further, she referred approvingly to states that prohibit affirmative action as laboratories, which does not indicate that the Supreme Court considers these amendments unconstitutional.
I believe, as most judges (include those favoring affirmative action) have, that it is not really correct to suggest the earlier Seattle case "directly controls", given how extraordinary a proposition it is to suggest that nearly constitutionally intolerable racial preferences are in any way constitutionally protected from being placed out of the reach of the democratic process.
What is predictive of the outcome of an en banc hearing is that when District Judge David Lawson (appointed by Bill Clinton) originally stayed enforcement of the proposition in late 2006, he was reversed at that time by the sixth circuit. The reason was that the sixth circuit judges handling the issue at the time believed that the political structure arguments had no merit. The link below has opinions in this case at various stages.

It is especially unlikely that the plaintiffs would win in the U.S. Supreme Court. The Justice Kennedy would almost certainly vote against BAMN. He may not believe that constitution requires absolute race neutrality, but he believes that individual racial classifications are dangerous and has voted against racial preferences in every major case (Grutter v. Bollinger, Parents Involved, Ricci v. DeStefano, etc. ) and would be unlikely to strike down this measure. It is not clear that they would even win the votes of the four liberal justices. These justices have never held that these preferences are in any way required.

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